Appellant appealed a decree awarding mesne profits. This Court held that evidence showed the plaintiff had already received payment for the disputed amount. The lower appellate court's order was set aside for being perverse as it ignored the paid amount.
Impugned judgment and decree set aside; suit dismissed and parties to bear own costs.
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
R.S.A. No. 208 of 2017
Date of decision: 28th November, 2017
Prem Chand …Appellant Versus Prem Singh ....Respondent
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No
For the appellant: Mr. Surinder Saklani, Advocate. For the respondent: Mr. H.S. Rangra, Advocate.
Tarlok Singh Chauhan, Judge (Oral)
Admitted on following substantial question of law:
Whether the findings recorded by the learned first appellate court are perverse and therefore, deserve to be set aside.
by the learned Additional District Judge (II), Mandi, in Civil
1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes
2
Appeal No.5/2016, whereby the plaintiff/respondent has
been held entitled for mesne profit @ Rs.400/- per month from 1.4.1998 to 30.6.2000 along with interest @ 6% per annum from the date of filing of the suit till its realization, has filed the instant appeal.
3
18.5.2000 and Rs.400/- on 7.6.2001 stood deposited in the account of the plaintiff. No doubt, these receipts are not the original, but it has specifically come on record that the bank has destroyed the register pertaining to the account of the plaintiff after 10 years as is clearly evident from the statement of DW2 Vachittar Singh.
4
court is clearly perverse as it has clearly side-tracked the
issue, which would be clearly evident from para 23 of the judgment, which reads thus:-
“Admittedly, the present case has been filed for mandatory injunction and the averments made in the plaint are of the recovery suit. It is well settled law the relief not found on the pleadings cannot be granted. The decision of the case cannot be based on the ground outside the pleadings of the parties. No evidence is admissible to be taken on record in absence of the pleadings and not party can be permitted to produce the evidence beyond its pleadings. All necessary material facts should be pleaded by the parties in support of the case set up by it as per perusal of the file. Admittedly, the pleadings made by the plaintiff is not of the mandatory injunction, but is of recovery suit. Therefore, the relief is molded in view of the pleadings made by the parties. It is settled law that the court cannot make out a new case if not pleaded, but the relief can be granted on the facts of the case if pleaded. Therefore, the present suit is within the ambit of suit for recovery and accordingly the relief is molded and the plaintiff is entitled to recovery of Rs.10,800/- along with interest @6% from the date of filing of the suit till its realization.”
accordingly.
this appeal and the same is accordingly allowed.
5
Consequently, the impugned judgment and decree passed by the learned first appellate court is set aside and the suit filed
by the plaintiff is ordered to be dismissed. The parties are left
to bear their own costs. Pending application(s), if any, also
stands disposed of.
November 28, 2017 (Tarlok Singh Chauhan) (pankaj) Judge
2 issues framed by the court
Whether the impugned finding that the appellant owes mesne profits is perverse given undisputed evidence that the amount was already paid.
Whether the lower appellate court erred in granting recovery relief based on a different cause of action (recovery suit) than pleaded but adjudicated (mandatory injunction).
Prem Chand
Prem Singh
Tarlok Singh Chauhan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
